THE  LIBRARY  OF  THE 

UNIVERSITY  OF 

NORTH  CAROLINA 


THE  COLLECTION  OF 
NORTH  CAROLINIANA 


C378 

UK3 
I898F.I 


FOR  USE  ONLY  IN 
THE  NORTH  CAROLINA  COLLECTION 


Form  No.  A.368 


Digitized  by  tine  Internet  Arcliive 

in  2010  witli  funding  from 

University  of  Nortli  Carolina  at  Chapel  Hill 


http://www.archive.org/details/firstannualdreOOfull 


Fii^gT  ANNUAL  A®^^£c 


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LaW  ©la^^ 


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^^:  University  of  Njortl]  (Carolina 


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l^onoroble     rl|omas   ®.  l-uUer 


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lornmencemeni  1898 


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Lllll/<  S   (lllll    '  ll'llllclllCII.    (iCIltlcilh'll    of  lllC 

I'  iiirer.-ilji  Iaih'  Chisn  of  l<sHS  ; 

Nut  all  of  you  will  Iktomi?  practicing  lawyers,  some 
ol'  you  doubtless  will  pursue  other  avocations;  it  is  to 
those  of  you  who  will  take  upon  yourselves  the  active, 
laborious  and  responsible  duties  of  the  litigations,  and 
the  conduct  and  guidance  of  the  important  affairs,  of 
(tthers.  that  I  shall  chiefly  address  myself.  There  is  not 
among  men  a  nobler  intellectual  pursuit,  nor  is  there  a 
higher  moral  standard,  than  inspires  and  pervades  the 
ranks  of  the  legal  profession;  you  will  look  in  vp.in 
elsewhere  for  more  spotless  honor,  more  absolute  devo- 
tion, more  patient  industry  and  more  conscientious 
fidelity,  than  is  to  be  found  there.  I  do  not  mean  to 
say  that  among  the  thousands  of  lawyers,  among  the 
seventy  millions  of  people  in  the  United  States,  there 
are  not  some  who  are  base  and  sordid  and  knavish,  but 
1  maintain  that,  in  proportion,  there  are  to  be  found 
not  a  greater  number  of  disiepvitable  persons  than  in  the 
other  avocations  of  life. 

The  i)iactic;^  of  law  is  a  most  honorable  avocation, 
and  worthily  pursued,  gives  honor  to  the  lawyer,  and 
by  bis  conduct  it  is  magnitied  and  made  more  honora- 
lile.  With,  I  hope,  a  properly  becoming  professional 
jiride.  1  v.ish  to  impress  upon  you.  who  are  to  become 
men  of  mark  in  your  respective  communities,  leaders 
of  }iul)lic  thought  and  sentiment,  that  you  owe  a  very 
high  duty  to  "  the  Law  of  the  Land" — that  by  your 
lives  and  conduct  you  show  forth  that  the  Law  is  maj- 


estic.  the  Law  is  benignant  and  the  Law  is  terrible: 
majestic,  because  it  is  just;  benignant,  because  it  has 
regard  to  the  frailties  and  infirmities  of  human  nature, 
protecting  as  a  father,  the  weak,  simple  and  defenceless: 
and  terrible,  in  that  it  can,  in  its  punitive  power,  say 
to  the  highest  as  well  as  to  the  lowest  of  humanity, 
cease  to  exist,  and  life  ends  at  its  appointed  time. 

Akin  to  this,  you  owe  another  very  high  duty  to  the 
profession  which  you  have  chosen.  Respect  your  pro- 
fession, and  show  that  you  do  respect  it  by  your  con- 
duct; do  not  follow  it  as  a  business  for  the  mere  mak- 
ing of  money;  demand  for  honest,  faithful  services,  fair 
compensation,  but  never  take  advantage  of  your  oppor- 
tunities to  cheat,  extort  or  oppress;  the  old  Roman 
lawyers  regarded  the  fee  paid  by  the  client  to  the  law- 
yer as  a  "  quiddam  honorarium,"  and  the  lawyer  of  this 
day  who  does  not,  to  a  certain  extent,  so  regard  it,  fails 
to  show  that  high  respect  for  the  profession  which  is  its 
due.  See  to  it,  that  you  so  discharge  these  duties  as  to 
restore  to  the  Law  and  its  ministers  something  of  the 
reverence  of  former  days. 

Before  entering  upon  the  practice  of  the  Law.  each 
one  of  you  will  be  required  to  take  three  oaths,  and,  as 
you  shall  properly  understand  and  faithfully  fulfill  these 
obligations,  so  shall  your  memory  live  among  your  fel- 
low-men, and  your  children's  children  shall  call  you 
blessed. 

1.  You  shall  swear  to  support  and  maintain  the  Con- 
stitution of  the  United  States. 

3.  To  support  and  maintain  the  Constitution  of  the 
State  of  North  Carolina,  not  inconsistent  with  the  Con- 
stitution of  the  United  States;  and 

3.  To  honestly  and  faithfully  demean  yourself  as  an 
attorney  and  counsellor  at  Law. 

You  will  observe  that  paramount  allegiance  is  due  to 


the  United  States,  and  that  the  man  of  to-day,  without 
cherishing  hitter  meniO!-ies  of  the  past — regarding  the 
war  hetween  the  States  as  a  mere  episode  in  the  Nation's 
h'fe — yielding  full  and  active  assent  to  the  logic  of 
accomplished  facts —  recognizing  the  great  American 
Union  with  every  State  and  Ttnritory  as  his  Country, 
for  which  in  his  ])atriotic  ardor  he  feels  that,  if  need  he, 
it  would  be  decorous  and  sweet  to  die;  this  feeling  en- 
tertained, and  illustrated  by  life  and  conduct,  and  noth- 
ing less  than  this,  is  the  proper  keeping  of  the  first  oath. 
In  brief,  paramount  allegiance  to  the  Constitution  of 
the  United  States  only  finds  expression  in  the  senti- 
ment, "Our  Country,  may  she  always  he  right;  hut 
right  or  wrong,  our  Country."" 

To  support  and  maintain  the  Constitution  of  North 
Carolina,  with  all  that  due  allegiance  to  the  State  im- 
plies, both  in  its  letter  and  sjiirit,  needs  no  explanation 
to  the  sons  of  the  sires  who  were  "  First  at  Bethel  and 
last  at  Appomatox.  "■ 

And  the  third  and  last,  or  the  attorney's  oath,  as  it  is 
called,  requires  the  practice  of  good  faith  in  all  of  a 
lawyer's  dealings,  but  particularly  of  the  utmost  good 
faith,  and  of  the  highest  honesty,  in  the  relation  of 
attorney  and  client ;  remember,  that  when  this  relation 
is  once  established,  the  attorney  may  not  sever  it  with- 
out good  cause;  and  that  while  the  relation  exists  he  is 
bound,  by  his  oath  and  honor,  to  serve  the  client  as  he 
would  serve  himself.  He  must  be  sober,  that  he  may 
always  be  ready  for  any  required  service;  he  must  be 
diligent  in  the  preparation  and  trial  of  his  case,  in  order 
that  he  may  serve  him  intelligently ;  he  must  be  vigi- 
lant, lest  by  his  inattention  the  client's  interests  suffer, 
and  above  all,  he  must  be  so  true  to  the  client  that  he 
will  do  all  in  his  power  that  the  law  permits,  according 
to  the  best  of  his  skill  and  ability,  and  that  an  houora- 


ble  man  can  be  requireci  to  do ;  and  to  do  less  than  this 
is  not  the  honest  and  faithful  demeanor  of  an  attorney. 

Having  been  inducted  into  the  high  and  honorable 
office  of  Attorney  and  Counsellor,  the  question  which  is 
the  title  of  one  of  the  most  powerful  works  of  English 
fiction  demands  an  answer,  "  What  will  he  do  with  it  ?  " 
and  I  answer,  he  will  do  his  duty,  or  he  will  do  less 
than  his  duty — he  can  not  do  more — and  that  duty  is  to 
serve  his  client,  and  to  devote  to  that  service  all  the 
powers  of  his  mind  and  heart — to  serve  him  to  the  verge 
of  the  law.  and  till  success  crovv'ns  his  efforts  or  "death's 
pale  flag  floats  o'er  the  ramparts." 

The  lawyer's  duties  to  his  client  range  themselves  un- 
der two  general  heads — to  counsel  and  advise,  and  to 
try  his  cases  in  the  courts. 

On  the  first,  I  shall  not  dilate,  only  remarking  that 
as  the  law  arises  from  the  facts,  the  lawyer  before  giv- 
ing advice  should  diligently  seek  to  possess  himself  of 
the  facts,  and  after  doing  this,  for  the  law  should  go  to 
the  "  books  '';  for  I  give  unto  you  a  better  command- 
ment than  "  Go  West,  young  man,"  which  is  "  Stay  in 
your  office  and  go  to  the  books,  young  man." 

In  the  trial  of  a  case  in  the  courts  of  Nisi  Prius, 
before  a  judge  and  juvj,  if  it  be  one  of  great  importance, 
especially  if  the  supreme  issue  of  life  or  death  is  to  be 
tried,  it  will  tax  all  the  powers  of  mind  and  body  to  so 
conduct  the  trial,  that  at  its  close  the  conscientious 
lawyer  can  say  to  himself,  well  done.  As  in  such  cases 
the  verdict  is  according  to  the  evidence,  the  most  im- 
portant part  in  the  conduct  of  a  trial  is  the  examination 
and  cross-examination  of  the  witnesses.  There  is  not 
an  exjierienced  practitioner  of  the  law  whose  observa- 
tion does  not  confirm  the  statement  of  one  of  the  ablest 
criminal  lawyers  this  country  has  produced,  "that  there 
is  often  more  mind  and  more  knowledge  of  human  na- 


turc  (lispliiyt'd  in  tlic  ('xaiHinaf  ion  nf  witnesses  than  in 
the  (listussion  of  the  cause  to  wliicli  their  testimony 
relates.  Evidence  witliout  ai'gunient  is  worth  niucli 
more  than  argument  without  evi(ienc(\  fn  their  union 
they  are  irresistil)le.  "* 

1  tlierefore  present  to  you  twenty  rules  for  the  exam- 
ination and  cross-examination  ot!  witnesses,  fonnulated 
and  illustrated  hythe  same  able  lawyer  to  wlioni  I  have 
referred,  which,  tested  by  my  observation  and  experi- 
ence, it  is  always  sate  to  follow,  and  from  which  it  is 
always  perilous  to  depart.  These  rules,  well  called 
••  (xoldeu  KuIps. ■"  each  young  lawyer  should  study  and 
jtractice  until  they  become  a  part  of  his  ])rofessional 
being. 

1.  As  to  your  own  witnesses:  If  they  are  bold,  and 
may  injui'e  your  case  by  pertness  or  forwardness,  ob- 
serve a  gravity  and  ceremony  of  manner  toward  them 
which  may  be  calculated  to  suppress  their  assurance. 

'i.  If  they  are  alarmed  or  diffident,  and  their  thoughts 
are  evidently  scattered,  commence  your  examination 
with  matters  of  a  familiar  character  remotely  connected 
wit!i  the  subject  of  their  alarm  or  the  matter  in  issue, 
as,  for  instance.  Where  do  you  live  ?  Do  you  know  the 
parties  V  How  long  have  you  known  them  V  etc. ;  and 
when  you  have  restored  them  to  composure,  and  the 
mind  has  gained  its  equilibrium,  proceed  to  the  more 
essential  features  of  the  case,  lieing  careful  to  be  mild 
and  distinct  in  your  approaches,  lest  you  may  trouble 
the  fountain  again  from  which  you  are  to  drink. 

.'!.  If  the  evidence  of  your  own  witness  be  unfavora- 
ble to  you  ( which  should  always  be  carefully  guarded 
against),  exhibit  no  want  of  composure;  for  there  are 
many  minds  that  form  opinions  of  the  nature  or  char- 
acter of  testimony  chiefly  from  the  effect  which  it  may 
appear  to  produce  upon  the  counsel. 


4.  If  you  perceive  that  the  mind  of  the  witness  is  im- 
bued with  prejudice  against  your  cUent,  hope  but  httle 
from  such  a  quarter ;  unless  there  be  some  facts  which 
are  essential  to  your  client's  protection,  and  which  that 
witness  alone  can  prove,  either  do  not  call  him  or  get 
rid  of  him  as  soon  as  possible.  If  the  opposite  counsel 
perceive  the  bias  to  which  I  have  referred,  he  may  em- 
ploy it  to  your  own  ruin.  In  judicial  inquiries,  of  all 
possible  evils,  the  worst,  and  the  least  to  be  resisted,  is 
an  enemy  in  the  disguise  of  a  friend.  You  can  not  im- 
peach him,  you  can  not  disarm  him,  you  can  not, 
indirectly  even,  assail  him;  and  if  you  exercise  the  only 
privilege  which  is  left  to  you,  and  call  other  witnesses 
for  the  purpose  of  explanation,  you  must  bear  in  mind 
that  instead  of  carrying  war  into  the  enemy's  country, 
the  struggle  is  between  sections  of  your  own  forces,  and 
in  the  very  heart,  perhaps,  of  your  own  camp.  Avoid 
this  by  all  means. 

5.  Never  call  a  witness  whom  your  adversary  will  be 
compelled  to  call.  This  will  afford  you  the  privilege  of 
cross-examination,  take  from  your  opponent  the  same 
privilege  it  thus  gives  you,  and,  in  addition  thereto,  not 
only  renders  everything  unfavorable  said  by  the  witness 
doubly  operative  against  the  party  calling  him,  but  also 
dei:)rives  that  party  of  the  power  of  counteracting  the 
effect  of  the  testimony. 

fi.  Never  ask  a  question  without  an  object,  nor  with- 
out being  able  to  connect  that  object  with  the  case,  if 
objected  to  as  irrelevant. 

7-  Be  careful  not  to  put  your  question  in  such  a  shape 
that,  if  opposed  for  informality,  you  can  not  sustain  it, 
or,  at  all  events,  produce  strong  reason  for  its  support. 
Frequent  failures  in  the  discussion  of  points  of  evidence 
enfeeble  your  strength  in  the  estimation  of  the  jury  and 
impair  your  hopes  in  the  final  result. 


) 


S.  Never  object  to  a  question  iVoiii  your  adversary 
without  being  able  ami  disjjosed  to  en  force  tlie  objection. 
Nothing  is  so  monotonous  as  to  l)e  constantly  making 
and  withdrawing  objections — it  either  indicates  a  want 
oT  correct  percejitiou  in  making  them,  or  a  deficiency  of 
reason  or  of  mornl  courage  in  not  making  them  good. 

!».  S{)eak  to  your  witness  clearly  and  distinctly,  as  if 
you  were  awake  and  engaged  in  a  matter  of  interest; 
and  make  him  also  sj)eak  distinctly  and  to  your  ques- 
tion. How  can  it  ba  supposed  that  the  court  and  jury 
'  will  be  inclined  to  listen,  when  the  only  struggle  seems 
to  be  whether  the  counsel  or  the  witness  shall  first  go 
to  slee]i  ? 

10.  Modulate  your  voice  as  cinumstauces  may  direct. 
"  Inspire  the  fearful  and  repress  the  bold  " 

1 1 .  Never  begin  before  you  are  ready — and  always 
finish  when  you  have  done.  In  other  words,  do  not 
question  for  question's  sake,  but  for  an  answer. 

CROSS-EXAMINATION. 

1.  Except  in  indifferent  matters,  never  take  your  eye 
from  that  of  the  witness.  This  is  a  chaunel  of  com- 
munication from  mind  to  mind,  the  loss  of  which  noth- 
ing can  compensate. 

"Trutli,  faWhood,  hatred,  anger,  scorn,  despair, 
And  all  the  passions — all  the  soul  is  there." 

•2.  Be  not  regardless,  either,  of  the  voice  of  the  wit- 
ness; next  to  the  eye,  this  is  perhaps  the  best  interpre- 
ter of  his  mind.  The  very  design  to  screen  conscience 
from  crime,  the  mental  reservation  of  the  witness,  is 
)  often  manifested  in  the  tone  or  accent  or  emphasis  of 
the  voice.  For  instance,  it  becoming  important  to  know 
that  the  witness  was  at  the  corner  of  First  and  Second 
streets  at  a  certain  time,  the  question  is  asked.  "  Were 


10 

you  at  the  corner  of  First  and  Secondstreets  at  6  o'clock?" 
A  frank  witness  would  answer,  perhaps.  "  I  was  near 
there."     But  a  witness  who  is  desirous  to  conceal  the 
fact  and  defeat  your  object  (speaking  to  the  letter  rather 
than   to   the   spirit   of   the   inquiry),    answers    "No,"' 
although  he  may  have  been  within  a  stone's  throw  of 
the  place,  or  at  the  very  place  within  ten  minutes  of  the 
time.     The  common  answer  of  such  a  witness  would 
j  be,  "  I  was  not  at  the  corner  at  6  o'clock."     Emphasis 
j  upon   both  words  plainly  implies  a  mental  evasion  or 
I  equivocation,  and  gives  rise,  with  a  skillful  examiner, 
'A  to  the  question.  ''  At  what  hour  were  you  at  the  cor- 
i  Iner  ?  "  or  "  At  what  place  were  you  at  H  o'clock  ?"   And 
'  in  nine  instances  out  of  ten,  it  will  appear  that  the  wit- 
ness was  at  the  place  about  the  time  or  at  the  time 
about  the  place.     There  is  no  scope  for  further  illustra- 
tion: but  be  watchful,  I  say,  of  the  voice  and  the  prin- 
ciple may  be  easily  applied. 

3.  Be  mild  with  the  mild,  shrewd  with  the  crafty, 
confiding  with  the  honest,  merciful  to  the  young,  the 
frail  or  the  fearful,  rough  to  the  ruffian,  and  a  thunder- 
bolt to  the  liar.  But  in  all  this,  never  be  unmindful  of 
your  own  dignity.  Bring  to  bear  all  the  powers  of  your 
mind,  not  that  you  may  shine,  but  that  virtue '  may 
triumph  and  your  own  cause  prosper. 

i.  In  a  criminal,  especially  in  a  capital  case,  so  long 
as  your  cause  stands  well,  ask  but  few  questions,  and  be 
certain  never  to  ask  any,  the  answers  to  which  (if 
against  you)  may  destroy  your  client,  unless  you  know 
the  witness  perfectly  well,  and  know  that  his  answer 
will  be  favorable,  equally  well ;  or  unless  you  be  pre- 
pared with  testimony  to  destroy  him,  if  he  play  traitor 
to  the  truth  and  your  expectation. 
P  5.  An  equivocal  question  is  almost  as  much  to  be 
I    avoided  and  condemned  as  an  equivocal  answer.   Single- 


11 

Dcss  of  purpose,  t-learly  expressed,  is  the  best  trait  in  the 
examination- of  witnesses — whether  they  be  honest  or 
tlie  reverse.  Falsehood  is  not  detected  bj'  cunning,  but 
l)y  the  light  of  truth,  or  if  by  cunning,  it  is  the  cunning 
of  the  witness  and  not  of  the  counsel. 

t>.  If  the  witness  is  determined  to  be  witty  or  refrac- 
tory with  you,  you  had  better  settle  that  account  with 
him  at  first,  or  its  items  will  increase  with  the  exami- 
nation. Let  him  have  an  opportunity  of  satisfying 
himself,  either  that  he  has  mistaken  your  power  or  his 
own.  But,  in  any  result,  be  careful  that  you  do  not 
lose  your  temper.  Anger  is  always  either  the  precur-  j 
sor  or  evidence  of  assured  defeat  in  any  intellectual 
conflict. 

7.  Like  a  skillful  chess  player,  in  every  move  fix  your 
mind  upon  the  combinations  and  relations  of  the  game 
— partial  and  temporary  success  may  otherwise  end  in 
t(jtal  and  remediless  defeat. 

s.  Never  undervalue  your  adversary ;  but  stand 
steadily  upon  your  guard.  A  random  blow  may  be  just 
as  effective  as  though  it  were  directed  by  the  most  con- 
summate skill — the  negligence  of  one  often  cures,  and 
sometimes  renders  effective  the  blunders  of  another. 

9.  Be  respectful  to  the  court  and  jury,  kind  to  your 
colleague,  civil  to  your  antagonist,  but  never  sacrifice 
the  slightest  principle  of  duty  to  an  over-weening  defer- 
ence toward  either. 

A  judicious  and  clear  development  of  the  facts  of  the 
case  is  more  important  than  the  ablest  and  most  elo- 
quent argument,  indeed  skillful  examination  often 
secures  a  verdict  without  argument. 

The  charge  given  to  the  jury  in  empanelling  them, 
"  Sit  together,  hear  your  evidence  and  give  your  verdict 
accordingly,"  is  not  mere  formality;  for  as  no  evidence 
can   be  considered  by  the  jury  except  that  which  the 


12 

Judge  permits  to  go  to  them,  so  none  other  is  "  their 
evidence,"  and  as  the  jury  judges  of  the  credibihty  of 
the  witness  by  his  manner  and  demeanor  upon  the  stand, 
by  his  attitude  toward  the  parties  and  the  cause,  etc.. 
it  is  the  business  of  the  examining  lawyer  to  bring  these 
matters  to  their  attention  and  thus  make  these  things 
"their  evidence"  as  well  as  the  matter  to  which  the 
witness  testifies.  And  you  will  also  remember  that  the 
jury  and  the  Judge,  being  mere  men,  with  the  same 
feelings,  passions,  frailties  and  infirmities  that  other 
men  have,  are  influenced  (unavoidably  often)  by  the 
manner  of  his  counsel,- to  take  a  favorable  or  unfavor- 
able view  of  the  client's  cause. 

■And  just  here,  I  will  remark,  that  though  trial  by 
jury  sometimes  falls  short  of  the  ascertainment  of  truth, 
it  is  because  it  is  of  human  origin,  and,  like  all  of  the 
other  works  of  man,  is  not  perfect;  but  this  much  may 
and  must  be  said  for  it — the  ingenuity  of  man  has  never 
found  a  better  method  for  the  trial  of  disputed  facts. 

The  next  step  in  importance  in  the  trial  of  a  ckse  is 
the  argument  of  counsel  or  the  summing  up  of  the  evi- 
dence. 

The  lawyer  has  no  more  difficult  task  to  perform  than 
that  of  defending  a  person  charged  with  a  capital  felony. 
I  will  therefore  offer  you  some  suggestions  in  that  be- 
half— the  result  of  reading  the  lives  and  writings  of 
great  mastei'S  of  the  art  of  defending  persons  for  their 
lives,  tested  and  verified  by  my  own  experience  and 
observation  in  the  courts. 

Before  you  undertake  to  defend  in  a  case  of  this  kind, 
be  well  satisfied,  in  your  own  mind,  that  you  are  com- 
petent to  discharge,  properly,  the  fearfully  responsible 
duty  you  are  called  upon  to  assume ;  do  not  let  a  desire 
for  that  notoriety  (which  appearance  in  a  case  of  great 
interest  in  the  community  always  gives),  blind  you  to 


13 

tlu'  (iiflicultii's  and  (lan<j;frs  ny  wliidi  you  will  incvitalily 
he  suit()U11(1(m]  :  for  rt'iiu'iuluT.  if  yoiif  task  be  uiiskill- 
fully  and  poorly  performed,  the  hkjod  of  the  defendant, 
the  maledictions  of  his  relatives  and  friends,  the  con- 
tempt of  the  comnninity,  and  condemnation  of  your 
own  conscience  will  deservedly  he  laid  upon  yovi,  as  the 
result  of  your  presumi)tuous  folly.  If  not  satisfied, 
fully  satisfied,  of  your  ahility,  either  decline  the  pro- 
posed emiiloyment  or  insist  that  more  exjierienced  and 
able  counsel  shall  take  the  leading  i)art  '.vhile  you  he- 
come  the  junior. 

If  you  are  satisfied  that  you  are  hoth  iniellectually 
and  physically  competent  to  the  task,  you  should  de- 
cline the  employment  unless  you  feel  assured  that  y^our 
feelings  are  deeply  enlisted  foi  the  defendant,  and  that 
your  feelings,  instead  of  impairing  your  efforts,  will 
only  incite  you  to  redouble  them.  You  should  feel  that 
you  will  not  make  any  cold-blooded  defense,  but  that 
with  all  of  your  powers,  both  of  mind  and  body,  you  will 
make  the  defense;  that  you  will  defend  as  you  would 
defend  your  own  wife  or  son  or  daughter  or  yourself, 
and  that  you  will  not  abate  one  jot  of  heart  or  hope 
until  the  fatal  trap  shall  fall ;  and  then  you  will  have 
the  consolation  of  feeling,  *'  I  knew  my  duty,  and  I 
did  it." 

Having  undertaken  the  defense,  you  should  then  see 
the  defendant  at  the  earliest  moment  possible,  and  at 
once  gain  his  confidence;  when  this  is  done  let  him 
make  his  statement  of  the  matter  fully  and  at  the 
greatest  length  he  will,  and  to  encourage  him  to  be 
frank,  give  him  the  assurance  that  whatever  he  shall 
say  to  you  will  never  be  divulged,  nor  can  you  ever 
be  made  to  divulge  it;  do  not  be  impatient,  do  not  hurry 
him,  but  i-ather  encourage  him  to  tell  you  all  about 
himself,  his  mode  and   habits  of  life  and  thought,  his 


14 

famil}^   and   connections,    his   likes   and   dislikes,    and 
especiall}"  everything  relating  to  the  crime  with  which 
he  is  charged,  and  his  connection,  if  any,  therewith.     I 
say  you  must  be  patient  with  the  defendant,  especially 
in  the  first  interview,  for  if  you  will  defend  him  as  you 
would  defend  yourself,  you  must  seek  to  learn  as  much 
about  his  life  and  character  as  you  know  about  your 
own ;  nor  need  you  fear  that  he  will  tell  you  such  things  f 
about  himself  as  will  cause  your  zeal  in  his  behalf  to  j 
sensibly  abate,  for  defendants  always   make   to   their 
lawyer  statements  the  most  favorable  to   themselves  , 
that  can  ))e  made. 

^yhen  the  defendant  is  brought  up  before  the  exam- 
ining magistrate  for  preliminary  hearing,  waive  exam- 
ination, unless  you  feel  absolutely  certain  that  it  can  be 
shown  either  that  no  crime  or  at  least  no  capital  crime 
has  been  committed,  or  that  there  is  no  probable  reason 
to  believe  that  the  defendant  is  guilty ;  unless,  I  say,  it  [ 
is  so  absolutely  certain,  waive  examination  and  let  the 
defendant  go  to  jail.  If  you  deem  it  of  great  impor- 
tance to  learn  what  the  witnesses  for  the  prosecution 
will  testify  to  and  can  not  learn  it  otherwise,  it  is  some- 
times advisable  to  decline  to  introduce  the  defendant's 
evidence  after  the  evidence  for  the  prosecution  is  in ; 
but  generally  this  course  is  not  advisable — as  upon  a 
waiver  of  examination  there  is  no  record  of  the  evidence, 
such  of  the  witnesses  for  the  prosecution  as  have  died 
or  moved  beyond  the  limits  of  the  State  can  not  be  used 
against  you  at  the  trial. 

I  have  said  let  the  defendant  go  to  jail ;  there  is  no 
better  j^lace  for  the  defendant  to  spend  the  interval  be- 
tween his  arrest  and  trial  than  the  jail.  True  there  are 
discomforts  attending  imprisonment,  and  confinement 
is  irksome;  but  in  jail  the  defendant  is  more  nearly  un- 
der the  control  of  his  counsel,  the  jailor  may  be  forbid- 


15 

dill  to  all()\v  aiiyoiu'  to  see  liis  prisoiici-  except  liv  his 
I  couiisers  (-onsent,  and  even  the  kt't'i)i'rs  may  1)6  forliid- 
1  den  to  talk  to  the  prjsonei-  or  allow  him  to  talk  to  them 
I  ahont  his  case.  You  will  tind  that  iicaily  the  only  sur- 
prises that  well-i)repared  counsel  encounters  are  incrim- 
inating statements  made  or  manufactured  to  the  pris- 
I  oner's  hurt — indeed  it  is  a  common  saying  that  men 
I  charged  with  high  crimes  are  more  hurt  hy  what  they 
say.  or  what  it  is  alleged  they  say.  than  what  they  do. 

Again,  the  sympathy  of  the  community  generally 
turns  to  the  defendant  in  jail,  esi>ecially  if  his  impris- 
I'onment  has  heen  long  continued. 

Anothei-  safe  rule  to  follow  is  never  to  try  a  doubtful 
case  at  the  first  term  of  court,  if  it  can  possibly  be 
avoided ;  and  not  to  try  it  as  long  as  you  can  continue 
it,  unless  at  a  given  term  you  can  gain  an  important 
advantage  that  would  not  be  possible  to  you  at  a  subse- 
quent term.  Time  is  a  great  healer.  Witiiesses  may 
die.  or  remove  and  not  be  found,  the  ardor  of  the  prose- 
cution may  cool,  the  temper  of  the  witnesses  for  the 
prosecution  may  molify,  and  the  violence  of  the  public 
sentiment  against  the  prisoner  will  surely  abate  as  the 
time  the  prisoner  remains  in  jail  is  extended. 

You  will  understand  that  it  is  not  easy  in  aU  cases  to 
follow  these  directions,  for  the  friends  and  relatives  of 
the  defendant,  in  their  anxiety  to  save  him,  wiU  gener- 
ally complain  that  the  defendant's  case  was  not  gone 
into  fully  before  the  examiniug  magistrate,  or  that  an 
effort  has  not  been  made  to  bail  him,  or  that  his  impris- 
onment has  been  so  long  continued,  and  frequently  the 
defendant  is  of  the  same  opinion.  But  firmly  and  de- 
cidedly you  should  disregard  their  clamor,  and  make 
them  understand  and  feel  that  what  you  do  is  for  the 
best  and  is  best  calculated  to  produce  a  favorable  result. 

Of  course  vou  must  continuallv  and  urgentlv  advise. 


16 

and  command  the  defendant  that  he  shall  talk  to  no 
one,  '-either  friend  or  relative,  priest  or  layman. "" 
about  his  case. 

In  the  preparation  of  the  case,  and  especially  in  its 
trial,  you  must  know  no  fear,  but  that  of  failure,  and 
even  that  you  must  permit  nobody  to  discover  through 
you.  Waive  no  right  that  you  may  possess  that  may 
affect  the  defendant,  and  permit  no  advantage  to  be 
taken  of  him — remember,  you  guard  the  citadel  of 
human  life — be  wary  and  be  firm.  The  .Judge  and  the 
jury,  it  is  true,  take  the  life  of  the  defendant,  but  you 
are  not,  by  your  failure,  in  any  respect,  to  give  it  away. 
You,  like  the  gladiator,  are  to  train  carefully  and  labo- 
riously for  the  conflict,  and  like  him  to  strive  mightily 
for  the  master 3%  and  win  the  splendid  prize  of  victory — 
the  life  of  man.  And.  after  all  your  efforts,  you  may 
not  acquit  au  innocent  man,  but  you  will,  by  a  firm, 
faithful  and  fearless  discharge  of  your  duty,  acquit 
yourself. 

You  must  enter  on  the  trial  of  a  capital  case  as  a  phy- 
sician should  enter  the  death  chamber:  calmly,  gravely, 
solemnly — all  eyes  are  upon  you,  all  hopes  are  upon  you, 
all  fears  are  upon  you.  That  is  no  time  for  flippancy  or 
agitation,  much  less  for  smiling  or  merriment;  sport 
would  be  as  well  timed  at  a  funeral. 

Sit  by  the  prisoner  while  you  make,  for  him,  his  chal- 
lenges to  jurors;  do  it  in  a  mild,  courteous  way,  lest 
you  make  enemies,  while  your  chief  object  should  be  to 
make  friends.  If  you  ever  challenge  for  cause  and  the 
challenge  fails,  be  certain  you  have  not  exhausted  your 
right  to  a  j^eremptory  challenge,  and  immediately  exer- 
cisefr,~and  never  challenge  the  last  juror  to  be  presented) 
to  you  unless  you  have  a  peremptory  challenge. 

The  jury  being  completed,  deliberately  proceed  AvitlV 
the  trial  of  your  case — no  hurry,  no  conferences,  no 


17 

gossi)),  IK)  levity,  no  divided  atteiitinn — note  ail  tliat 
transpires  closely,  and  look  as  you  shoulci  feel,  calm  and 
coinpo.-^ed;  for  the  defendant  and  all  connected  with 
him  look  at  and  to  you. 

If  the  witnesses  for  tlie  prosei-ution  do  rmt  affect  your 
defense  seriously,  do  not  cross-examine  them  at  all, 
unless  you  are  certain  they  can-  and  will  i)rove  some- 
thing affirmatively  for  the  defense. 

In  trying  your  case,  if  the  character  of  the  defendant 
Ite  strong,  and  his  facts  weak,  introduce  your  character 
witnesses  first:  if  his  facts  be  strong  and  his  character 
weak,  introduce  his  character  witnesses  last,  or  not  at 
all,  which  last  is  generally  the  better  course  to  pursue. 

It  is  permitted  to  examine  the  defendant  as  a  witness 
in  his  own  behalf,  and  though  the  law  provides  that  if 
he  does  not  avail  himself  of  the  privilege  he  shall  not  be 
prejudiced  thereby,  and  though  the  Judge  will  charge 
the  .iury.  as  the  law  makes  it  his  duty  to  do.  that  no 
inference,  unfavorable  to  the  defendant,  is  to  be 
drawn  by  them  by  reason  of  such  failure;  yet  they 
will  (naturally  perhaps)  conclude  that  the  defendant 
does  not  go  on  the  stand  because,  and  only  because,  he 
knows  himself  to  be  guilty, and  is  afraid  of  the  cross- 
examination;  therefore,  if  the  prisoner  bean  intelligent 
man,  and  being  made  to  understand  the  risk,  insists 
upon  testifying,  it  is  safer  to  let  him  do  so,  unless  you 
are  absolutely  sure  it  will  be  too  hazardous:  if  you  are 
so  sure,  it  is  your  duty  to  decline  to  put  him  on  the 
witness  stand,  and  take  flu'  responsibil/ti/  upon  your- 
self. The  determination  of  this  matter  is  extremely 
difficult  frequently,  and  requires  the  deliberate  esercise 
of  your  best  judgment,  uninfluenced  by  any  other  con- 
sideration than  the  promotion  of  the  best  interest  of  the 
defendant.  He  may  desire  to  go  on  the  witness  stand, 
mav   insist  upon  it.  mav   demand  it  as  his  right;  his 


IS 

friends  may  join  him,  tlie  greatest  pressure  may  be 
brought  to  bear  upon  you  to  yield,  and  you  will  doubt- 
less earnestly  wish  to  yield  to  their  pleadings.  But  if 
your  judgment  says  no,  you  must  firmly  refuse. 

Throughout  the  trial,  you  must  never  despair.  I  have 
often  known  the  worst  case  in  the  beginning  prove  to 
be  the  best  case  in  the  'end.  If  the  defendant  have  a 
family,  much  as  it  may  cost,  the  family  should  be  i^res-  . 
ent  with  him  in  the  hour  of  his  extremest  need;  he  will  " 
suffer  more  by  their  absence.  Their  presence  will  give  /| 
a  proper  tone  and  complexion  to  the  scene;  it  is  worth 
a  thousand  fancy  sketches  of  conjugal  or  filial  agony. 
The  sight  of  the  agonized  condition  of  the  wife  and 
children,  and  the  contemplation  of  their  wretchedness 
in  case  of  an  adverse  verdict,  and  their  joy  and  grati- 
tude if  the  verdict  shall  he  favorable  to  the  defendant, 
will  bring  to  the  minds  of  the  jurors  more  forcibly  than 
everything  else  can,  a  sense  of  their  own  resi:)onsibility. 
and  fortify  them  for  the  proper  discharge  of  their  duty, 
to  give  to  the  defendant  the  full  "  benefit  of  any  I'easou- 
able  doubt, '"  and  to  act  upon  that  humane  maxim  of 
the  law,  that  it  is  better  "  that  ninety  and  nine  guilty 
men  should  escape  than  that  one  innocent  man  should 
suffer. '  ■ 

If  your  efforts  shall  be  crowned  with  success,  be 
thankful  to  God  and  the  jury,  but  exhibit  no  vain  spirit 
of  boasting;  enjoy  your  triumph  with  becoming  mod- 
esty and  moderation. 

If  the  defendant  is  convicted,  do  not  despair;  as  an 
old  lawyer  friend  of  mine  used  to  say,  "  A  good  lawyer 
only  begins  to  fight  when  a  verdict  is  returned  against 
his  client."  Certain  it  is  that  much  is  to  be  hoped 
from  a  motion  for  a  new  trial,  or  a  motion  in  ariest  of 
judgment,  or  failing  these,  from  an  appeal  to  the 
court  of  last  resort.  It  is  only  after  the  judgment  of  the 


1» 

trial  court  is  afllirnied  and  a  pardon  has  been  refused,  and 
the  executioner  has  carried  into  effect  the  sentence  and 
judgment  of  the  law — then,  and  not  till  then,  are  your 
duties  done. 

But  to  return  trom  tliis  digression  to  tlie  argument, 
or  sununing  up  of  the  evidence.  If  there  is  more  than 
I  one  attorney  for  the  defense,  the  one  who  is  to  make 
the  main  argument  should  (except  for  good  cause)  con- 
duct the  examination  of  the  witnesses.  Which  one 
shall  make  the  main  argument  and  which  one  conduct 
the  examination,  should  as  far  as  possible  be  settled 
before  the  trial  begins. 

If  the  defendant  introduces  no  evidence  his  side 
i-i  entitled  to  open  and  conclude;  in  that  event,  a 
junior  should  open  and  the  leader  conclude;  but  the 
junior's  ojiening  should  not  be  merely  formal — he 
should  be  insti'ucted  to  do  his  best.  If  the  prosecution 
has  the  opening  and  conclusion,  it  is  a  much  mooted 
point  as  to  whether  the  leader  for  the  defense  should 
make  the  opening  or  closing  speech  on  his  side.  I  have 
observed  the  best  results  generally  follow  the  leader's 
making  the  opening,  especially  if  he  be  a  practiced  and 
able  advocate;  in  this  opening  he  should  disclose  the 
full  defense,  clearly  and  candidly,  and  cover  the  whole 
ground,  as  if  nobody  on  his  side  were  to  speak  after 
him.  This  course  is  commended  by  at  least  two  good 
reasons:  First,  it  presents  to  the  juiy,  at  the  earliest 
possible  moment,  the  prisonei's  defense  under  the  most 
favorable  light:  and,  second,  if  the  opening  be  thorough 
and  exhaustive  (as  it  should  lie)  it  is  very  apt  to  give 
tone  and  direction  to  the  whole  subsequent  discussion. 

The  counsel  should  come  to  the  argument  of  the  case 
in  the  best  possible  physical  condition,  keeping  up  as  far 
as  he  can  his  regular  habits :  he  sliould  get,  if  possible, 
eight  hours  of  sound,  healthy  slee]i  the  night  before  he 


20 

is  to  speak,  for,  I  assure  you,  it  is  much  more  condu- 
cive to  the  successful  termiuation  of  the  defendant's 
case  that  his  counsel  should  sleep  well  the  night  before, 
than  that  he  shall  spend  the  night  in  preparation  which 
he  should  have  completed  before — for  ii  is  better  that 
the  case  should  not  be  fully  prepared  for  argument  than 
that  the  counsel  should  be  physically  unprepared  to 
argue  it.  Lord  Coke's  rule  is  a  good  one  for  a  lawyer 
to  follow  at  all  times:  "  Eight  hours  to  sleep,  to  law's 
grave  study  seven,  eight  to  the  world,  and  all  to  heaven. " 

Lawyers  should  not  take  notes;  especially  should 
those  who  make  the  defense  of  persons  charged  with 
high  criminal  offenses  somewhat  of  a  specialty,  rely  on 
memory,  so  far  at  least  as  the  testimony  of  the  witnesses 
is  concerned ;  cultivate  the  memory,  and  it  will  be  so 
strengthened  thereby  that  it  will  serve  you  better  than 
any  notes,  other  than  the  verbatim  notes  of  a  stenogra- 
pher, as  to  accuracy,  while  memorized  testimouj"  is  in- 
finitely the  best  for  use  in  other  respects.  I  have  known 
lawyers  to  try,  and  try  well,  long  and  complicated  cases 
without  taking  a  single  note  from  the  beginning  to  the 
end  of  the  trial. 

When  you  come  to  address  the  jury,  "  be  calm  and 
deliberate  and  do  not  begin  until  you  are  ready;  don't 
look  up  at  the  jury  as  if  you  feared  them;  don't  look 
down  upon  them  as  if  you  despised  them,  but  look  each 
one  dead  in  the  eyes,  and  speak  to  your  client's  cause." 
Such  was  the  advice  I  heard  an  old  lawyer  give  to  a 
young  one  many  years  ago;  better  could  not  be  given, 
as  my  experience  and  observation  have  proven. 

The  jury,  the  twelve  plain  men  selected  as  the  law 
directs,  are  not  the  jurors  of  the  State  or  of  the  defend- 
ant; they  are  the  jurors  of  the  law,  upon  whom  has  been 
imposed  the  solemn  and  responsible  duty  of  passing  be- 
tween the  State  and  the  prisoner  at  the  bar  upon  his  life 


and  (It'atli.  and  tliey  are  generally  conipetent  to  th.' 
task:  such  is  the  exi)erience  of  the  ages,  for  there  is  no 
right  so  i)recious  to  peojjle  of  Enghsh  lineage  as  the 
right  of  tiial  hy  juiy.  Sueh  a  hodv  is  not  to  he  looked 
ii])  to  with  fear,  for  the  happiest  day  in  the  life  of  a 
man.  falsely  accused  of  crime,  is  the  day  when  he  faces 
an  honest  jury  and  demands  that  they  shall  "  hearken  to 
his  rause.""  Nor  are  they  to  be  despised,  they  alone  are 
clothed  with  the  tremendous  power  of  taking  away  the 
life  which  (lod  alone  can  give,  and  none  can  take  away 
without  His  consent:  under  Deity,  they  ar"  the  absolute 
arbiters  of  the  prisoner's  fate,  with  none  to  question 
their  verdict,  and  from  which  there  is  no  appeal.  And 
as  you  fear  them  not,  neither  can  you  despise  them; 
you  are  to  address  them  boldly,  aad  with  tha  most  pro- 
found respect.  You  want  their  verdict,  you  hunger  and 
thirst  for  it,  and  you  must  have  it,  if  by  the  best  exer- 
cise of  your  best  powers  of  h^art  and  mind  it  may  be 
had.  As  you  look  each  juroi-  steadily  in  the  eyes,  let 
your  looks  give  assurance  that  they  have  no  reason  to 
fear  that  you  will  attempt  to  hector  or  brow-beat,  nor 
to  trick  or  deceive  them  into  a  verdict;  neither  to  de- 
spise you  because  of  the  truculency,  sycophancy  or  sub- 
serviency of  your  manner,  or  for  your  artfulness  and 
disingenuousness  in  presenting  to  them  your  client's 
cause. 

Speak  to  your  client's  cause.  It  is  generally  best  to 
commence  in  an  ordinary  conversational  tone  and  with 
as  much  of  clearness  as  you  can,  make  a  fair  summary 
of  the  evidence.  I  say  a  fair  summary — it  must  be  ab- 
sokitely  so.  and  it  must  be  full:  no  important  portion 
of  the  evidence  must  be  omitted,  and  not  one  jot  or 
tittle  nmsthe  perverted.  This  must  be  done,  not  coldly, 
for  there  must  be  no  coldness  about  your  whole  speech: 
your  manner   should   be   calm    and  diijnified.  and  your 


self-possession  perfect  but  not  conspicuous.  If  you  per 
form  this  part  of  your  task  well,  you  will  perceive  that 
you  have  secured  the  atteatioo  of  the  jury  and  that  they 
are  preparing  to  give  you  their  con^dence.  To  fix  and 
keep  their  attention,  without  which  your  speech  will  be 
in  vain,  your  manner  must  be  natural  and  not  theatri- 
cal, and  by  voice,  gesture,  attitude  and  countenance  you 
must  show  that  you  are  speaking  from  the  heart  to  the 
heart;  for  it  is  true  that  with  most  plain,  honest  men 
it  is  largely  through  their  emotional  natures  you  must 
seek  and  receive  their  intellectual  assent  Be  candid, 
be  nonest,  be  earnest,  be  eloquent  with  the  forensic  elo- 
quence of  to  day,  which  is  "  logic  red-hot.' 

There  is  one  further  and  very  important  suggestion  I 
will  make  to  3'ou.  When  you  have  done.  stop.  For 
if  when  your  speech  has  reached  its  natural  and  expected 
close,  you  go  on  with  needless  repetitions  or  unmanly 
appeals  for  mercy,  with  which  the  jury  has  nothing  to 
do,  you  run  the  almost  certain  risk  of  obliterating  many 
of  the  impressions  ycu  may  have  made  on  their  minds 
favorable  to  the  piisoner.  and  incline  them  sti'ongly  to 
find  for  the  State. 

After  obtaining  license  to  pi-actice  law,  you  will  be 
told,  have  doubtless  been  many  times  told  already,  there 
is  no  room  in  North  Carolina  for  any  more  lawyers  than 
we  now  have,  the  legal  profession  in  the  State  is 
crowded:  v/ith  the  Supreme  Court  licensing  thirty  oi" 
forty  or  fifty  new  lawyers  every  year,  and  with  the 
number  of  cases  on  the  docket  growing  smaller  in  every 
county  in  the  State,  and  theii"  importance  growing  less, 
the  harvest  for  you  (if  there  is  any  harvest)  is  very  un- 
promising: and  you  will  be  advised  to  go  into  some 
other  business.  I  say  to  you,  be  not  discouraged  by 
such  suiJgestions.  and  heed  not  such  advice;  if  vou  love 


'28 

tlu'  I'lw,  ami  IVel  that  you  have  an  a|)titu(h'  lor  its  pnic- 
tice,  stick  to  it.  Taking  into  c-onsiih'ration  the  tacts 
that  many  licensed  attorneys  move  from  the  State,  and 
many  turn  their  attention  to  other  business,  the  num- 
ber of  lawyers  in  the  State,  to-day,  is  not  gr(>ater  in 
pioportion  to  population  than  it  was  prior  to  isco;  the 
(lerrease  of  litigation  is  an  incident  of  tl:e  "  hard  times  "' 
which  ha\e  been  upon  the  country  for  several  years 
past,  and  may  be  expected  to  pass  away  vvhen  prosperity 
returns;  prosperous  times  for  the  people  generally  are 
prosperous  times  for  the  lawyers,  and  the  reverse.  Even 
as  it  is  now,  I  do  not  know,  nor  by  inquiry  have  I  been 
able  to  discover,  a  lawyer  in  North  Carolina,  who  is 
sober,  honest  and  diligent  in  business,  who  is  not  meet- 
ing with  reasonable  success,  certainly  with  as  much  suc- 
cess as  are  those  engaged  in  other  pursuits  of  life:  there 
is  no  reason  why  you  should  despair,  and  but  little  more 
why  you  should  despond. 

Where  shall  you  locate  is  a  question  which  each  one 
of  you  will  naturally  ask  himself.  You  will  look  to  the 
States  to  the  North  and  to  the  South,  but  most  hope- 
fully to  the  vast  empire  beyond  the  Mississippi,  called 
"  The  West."  and  you  will  assume  that  any  place  is  a 
more  promising  field  of  laboi",  and  more  inviting  to  am- 
bitious youths  than  is  the  State  of  your  birth — you  are 
mistaken.  I  have  traveled  over  a  large  portion  of  this 
great  country,  and  am  tolei-ably  familiar  with  the  con- 
ditions of  life  in  the  West  and  Southwest,  and  know 
that  to  you  they  would  be  as  new,  strange  and  hard  as 
if  you  were  on  another  continent :  and  you  would  soon 
learn  that  the  same  energy  and  effort  you  would  have 
to  put  forth  there  would  give  better  and  happier,  if  not 
greater  results,  if  employed  at  ho.me  among  kindred  and 
friends,  and  those  who  wish  you  well.     Each  country 


M 


has  its  advaulages  and  its  drawbacks,  but  averagini 
a)l,  1  declare  to  you  I  would  rather  take  my  chaiJ 
ces  for  hfe.  hberty  and  happiness  in  North  Carohua  thaij 
in  any  portion  of  the  earth  I  have  seen. 


■  Tlio'  the  scorner  may  sueer  at 
And  tlie  witliug  defame  hei-. 
My  heart  swells  with  gladness 
Whenever  I  name  her." 


